La Porte D'Or [2002] QBCCMCmr 718 (12 December 2002)

RA MeekREFERENCE: 0755-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	12681
Name of Scheme:	La Porte D'Or
Address of Scheme:	3422 Gold Coast Highway SURFERS PARADISE QLD 4207

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180



RA MeekI hereby order that the application by Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180, for an interim order that the chairman be ordered to remove Motion 16 (that the body corporate instruct the lift maintenance contractor to remove the “key only access” to level 33 foyer) from the Agenda for the AGM to be held on December 18^th, 2002, is dismissed.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0755-2002

“La Porte D'Or” CMS 12681

The applicants Peter Anthony O'Connor & Caroline Helen Fleming, the owners of lot 180, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the chairman be ordered to remove Motion 16 from the Agenda for the AGM to be held on December 18^th, 2002. The motion is “that the body corporate instruct the lift maintenance contractor to remove the “key only access” to level 33 foyer”.

The Applicants have also sought the following interim order of an adjudicator, quote -

Yes, only if the motion is delayed....

The applicants numbering in the application and the schedule do not correlate. There is no “statement 10” in the schedule. However it appears to me that the applicants are seeking a final order that the chairperson be ordered to withdraw motion 16 from the agenda of the AGM to be held on 18 December 2002.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be dismissed, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances. However, given that an interim order may be made ex parte (ie. without reference to, or submission from the respondent named in the matter), then as a guide, where the circumstances or matters in dispute include matters or allegations not capable of objective consideration, or ready determination, or relate to issues of credibility or character, for example, where an interim order would be inappropriate, then the request for an interim order will be dismissed. It is a matter for an adjudicator to determine in respect of each application.

The nature of the matters raised in this application are not such that they can be effectively addressed or dealt with by way of an interim order. Further, I consider that it is in issue whether an adjudicator could order that a chairperson withdraw a motion from an agenda. There is no statutory basis on which this could be done. Section 47 of the standard module provides a power for the chairperson to rule a motion out of order if the circumstances outlined in that section exist.

In my opinion, it is not open to an adjudicator or order a chairperson to withdraw a motion simply because an owner opposes such motion. Moreover, a final order to this effect, after the motion has been considered and possibly carried, will be of no effect. In the circumstances, I suggest the appropriate orders for the applicants to seek are, following the motion being carried (if it in fact is), possibly an interim order that the motion / resolution not be implemented pending a final determination of the application, and a final order that the motion / resolution is invalid and of no effect. The basis on which the applicants would need to argue for invalidation of the resolution is that the decision taken by the body corporate in the administration, management and control of the common property is not reasonable and for the benefit of lot owners (see section 114 of the Act).

I suggest that pending the outcome of motion 16 when considered at the AGM, the applicants consider making a further application on the basis suggested above. Obviously, it would be for the applicants to evidence the basis on which the body corporate was considered not to be acting reasonably.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order. n